In his judgment, Justice Lofchik summarized well what happened between the plaintiff, Mr. Turmel, and the CBC. A Dragons’ Den producer recruited Turmel for his public speaking skills. No business idea was on the table at that time. Turmel signed a bulletproof consent and release. Then his unsuccessful pitch for “a local currency system for Brantford, Ontario” was taped on May 31, 2009. Dragons showed no mercy. Nine months later, the CBC broadcast Mr. Turmel’s pitch in a one-minute version. A week later, he sued the CBC for defamation.

The CBC brought a summary judgment motion. The rule for summary judgment is that “there is no genuine issue requiring a trial with respect to a claim or defence.” Summary judgment is serious because it deprives one or more parties to a lawsuit of a trial. But if there is no doubt about the outcome of a trial, the court should grant summary judgment to save everyone’s time and money.

The first issue at the motion was Mr. Turmel’s failure to notify the CBC of the alleged defamation in writing within six weeks of seeing the broadcast. Ontario’s Libel and Slander Act bars any claim for “libel in a newspaper or in a broadcast” if the plaintiff didn’t do that. Even serving a statement of claim a week after the broadcast didn’t help Mr. Turmel. The purpose of the written notice is to give the alleged defamer a chance to apologize and correct the record. The courts have held that you cannot expect a defendant to have such an opportunity once the litigation took off. If Mr. Turmel’s claim was for defamation, his ignorance of the (rather arcane) law killed his case.

The second issue was Mr. Turmel’s argument that his case was not only for defamation but also for breach of contract. If he was right, the Libel and Slander Act didn’t bar at least some of his claim. He was wrong. The judge held that even though “one might also glean the suggestion of a claim for breach of contract,” Mr. Turmel signed a rock-solid consent and release that was the whole contract between him and the CBC. Mr. Turmel wasn’t a vulnerable party deserving special treatment, and he could have consulted a lawyer when he signed the deal. The agreement was that the CBC could pretty much show or not show anything taped in exchange for giving him a chance to pitch to the Dragons.

So a procedural misstep in the defamation claim and a failure to plead another real cause of action caused Mr. Turmel to lose this summary judgment motion. Consulting a defamation lawyer could certainly have helped him, but who knows, maybe Mr. Turmel will launch a second salvo in his war with the CBC by pleading another cause of action. But which one?

Pulat Yunusov is a Toronto litigation lawyer.

(Post sponsored by AdviceScene)

By Nate Anderson

Need to get around a Chinese government firewall? Burning to smuggle your samizdat writings past Iranian Internet censorship? Hoping to blog with impunity in Burma? Uncle Sam wants to help. The US government has a $30 million pot of money to spend on “Internet freedom” programs around the world, and it’s not afraid to make a few enemies.
Secretary of State Hillary Clinton last year gave a major speech on Internet freedom and the new “Information Curtain” of censorship that has fallen in some parts of the world. In that speech, she said that State would support development of tools that can bypass Internet censorship. She also outlined a program in which State would fund mobile phone apps that allow people to rate government ministries on responsiveness and efficiency and that can ferret out corruption through crowdsourcing. The hardware is already in the wild, she said; all what’s needed is some money to make it worth developers’ time.
This year, State has $30 million for such projects, and it’s asking interested parties to apply for the cash. Top on its list of wants: “counter-censorship technology” that can bypass firewalls and filters. Such tools may be general (like Tor) or can be specific to individual governments. China and Iran can probably look forward to some US-funded encryption and circumvention tools coming their way in the near future.
The grants will focus on “East Asia, including China and Burma; the Near East, including Iran; Southeast Asia; the South Caucasus; Eurasia, including Russia; Central Asia; Latin America, including Cuba and Venezuela; and Africa.” North America and Western Europe get a pass.
In addition to circumvention tools, State wants to fund secure mobile communications tech that can make mobile phone usage safer. The government will also help nonprofits and digital activists build communication platforms, and it wants to establish “virtual open Internet centers” that exist outside of closed countries and provide a spot to post and archive censored content.
If you’re part of a nonprofit or a university (and are not an affiliate of a “designated terrorist organization”), you have a month to submit an online statement of interest.

——————Source——————

http://arstechnica.com/tech-policy/news/2011/01/uncle-sam-has-30m-to-bypass-chinese-iranian-net-filters.ars

———————————————

Interesting comment by a reader:
“govt, doesnt give anything away to anyone (except themselves and their filthy bosses).

it smells like a trick to start the censorship and as usual in the name of democracy.
I had heard many years ago that they are planning to introduce the Internet 2 and shut this one down.

in any case the problem in USA and the West is Not the censorship the problem is Monopoly on info!
the rest of the world gets its info from this monopolized source!”

The case deals with Internet defamation and how to determine where to sue for it. As with traditional defamation, a party alleging Internet defamation must demonstrate they suffered damages in Ontario and also that they have a significant connection to Ontario. Where Internet defamation differs from traditional defamation is that the alleged victim must prove the statements in question targeted Ontario.

In Black v Breedan, Black brought an action for libel against directors, advisers and a vice-president of Hollinger International for statements posted on the Hollinger website. Black argued his reputation was damaged in Ontario as a result of these defamatory statements that had been reproduced in a number of prominent Canadian newspapers, such as the Globe and Mail and the National Post.

…

Black v Breedan is noteworthy because of the online aspect of the alleged defamation. Because anything posted on the Internet can be seen anywhere in the world, it has led to “libel tourism” – where someone who thinks they have been defamed will try to sue in whatever jurisdiction they might be most successful in, and get the highest damage award.

Black v Breedan tells us that – at least in Ontario – libel tourists are not welcome.

The case is interesting to me because it’s one of the first looking at the reformulated real and substantial connection test in Van Breda v. Village Resorts Limited for libel cases over the Internet.

The motion judge found most of the Muscutt factors favoured Black. On appeal, the Defendants submitted that the judge erred in looking at the connection of Black to Ontario, instead of the connections of the claim to the province.

The alternative positions of the two parties are best set out in the following paragraphs:

[35]     The defendants submit that treating the lex loci delicti as the place in which allegedly defamatory statements were accessed is inappropriate in the context of Internet libel. An approach that looks to where the statements were accessed, they argue, is contrary to the principles of order and fairness, leads to libel tourism and the prospect of unlimited liability and has a chilling effect on freedom of speech.

[36]     The defendants advocate a different approach to a claim for libel originating on the Internet. They suggest that the focus of the analysis of where the tort of Internet libel is committed should be on whether the defendant targeted the statements to the forum rather than where they were downloaded and read.

The Ontario Court of Appeal upheld the presumption of a real and substantial connection under Rule 17.02(g), even though the Van Breda test was not applied, and held that the Defendants did target their statements to Ontario based on press release contact info for local media. Consequently, there was a real and substantial connection between both Black and the Defendants, even if they were in a different jurisdiction.

In assessing fairness, the court noted that even though there might be difficulties with enforcement of a judgment in the U.S., a favourable ruling would have some value in vindication for Black. But the court also tied this fairness element to the libel tourism issue raised by Canton,

[86]     I agree with the motion judge that it is not appropriate to label it forum shopping or libel tourism if the party has a real and substantial connection with the forum: see Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), 1993 CanLII 124 (S.C.C.), [1993] 1 S.C.R. 897, at p. 920. Further, even if the judgment is not enforceable in the United States, it is enforceable in Ontario, and there is also value in the vindication of a defamation judgment regardless of the ability to collect damages.

Although Ontario courts have resisted libel tourism in the past, Black v. Breedan also reaffirms the proposition that where a case meets the Van Breda factors this is not in fact a case of forum shopping.

The presentations, with audio and complete papers, are available on the WIRP site, or on SlideShare below:

Full Paper: Media Narratives in Times of Turmoil: Depictions of Minorities in Canada Post 9/11

Full Paper: Admissibility of Alcohol and Gaming Commission of Ontario Reports

One of the “Dragons” is Jim Treliving is, among other numerous ventures, a co-owner of Mr. Lube.

Fast forward to the episode that I was watching.  Out comes Jessica Gilbank, who is the owner of Ms. Lube by Mechanchik.  She is the owner of an oil changing garage that employs women, because she found it hard for female mechanic apprentices to break into the male dominated field.

Although I know little about copyright law, Treliving clearly indicated in the episode that he did not even want to participate in the segment because he clearly felt that Ms. Lube was infringing on the Mr. Lube brand.

Fast forward again to this week, where my prediction came true.  The Globe and Mail has reported that Mr. Lube has filed a $250 000 lawsuit alleging that the use of the name Ms. Lube should be prohibited based on copyright law.

As this legal domestic dispute unfolds we shall see how the court rules.

What is more interesting to me is how this may affect the CBC and potential “contestants” on Dragon’s Den.  For this, too we will have to wait and see as the next season of Dragon’s Den is currently filming.

Yesterday, the Ontario Divisional Court released its decision in Warman v. Fournier et al, 2010 ONSC 2126 (Div. Ct.) rev’g (2009), 309 D.L.R. (4th) 227, 76 C.P.C. (6th) 155 (Ont. S.C.J.) (“Warman”). At issue was whether the disclosure provisions of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) automatically entitle plaintiffs in internet defamation cases to obtain the identifying information of anonymous posters from websites and ISPs, or whether courts must balance the interests of plaintiffs with the freedom of expression and privacy interests of anonymous posters. The decision is now the leading authority in Ontario for the proposition that the objectives of the disclosure obligations under the Rules must be balanced with the right of freedom of expression in internet defamation cases. This article discusses the background, holding, and implications of Warman.

1. Background

The Respondent commenced an action against the Appellants, the operators of an internet message board, and eight anonymous message board participants with respect to a series of allegedly defamatory postings. After commencing the action, the Respondent brought a motion for an order compelling the Appellants to comply with Rule 76.03 of the Rules which required the Appellants to file an affidavit of documents that disclosed the email and internet protocol (“IP”) addresses of the anonymous posters in order to allow the Respondent to identify the posters and serve them with the statement of claim.

The motions judge rejected the Appellants’ submission that the Respondent was required to establish a prima facie case of defamation before disclosure could be ordered. Instead, Justice Kershman concluded that Rule 76.03 of the Rules required the Appellants to disclose all documents in their power or control and that such disclosure should be automatic upon the issuance of a statement of claim because the information was relevant and not protected by privilege.

This decision stood in stark contrast with earlier cases that offered some protection to the privacy interests of internet users by requiring plaintiffs to demonstrate a bona fide or prima facie case of defamation before ordering disclosure (see: previous posting). The motions judge distinguished these cases on the basis that the Respondent was seeking to compel the Appellants to follow the Rules as required by named parties to the action, whereas the other cases involved discretionary orders for the production of documents from third parties.

2. Holding on Appeal

The Divisional Court unanimously allowed the appeal and remitted the matter to a different motions judge for re-consideration, recognizing that the anonymous posters’ right of freedom of expression under the Charter should have been taken into account in considering the Respondent’s request for disclosure under the Rules. Moreover, the Court noted that the posters’ express decisions to remain anonymous gave them a reasonable expectation of privacy that weighed in their favour.

In rejecting the notion that disclosure should be automatic, the Court also expressed concern for the ease by which a plaintiff could abuse the Rules by filing claims in a spurious manner simply to identify an anonymous poster:

If disclosure were automatic, a plaintiff with no legitimate claim could misuse the Rules of Civil Procedure by commencing an unmeritorious action for the sole purpose of revealing the identity of anonymous internet commentators, with a view to stifling such commentators and deterring others from speaking out on controversial issues. For this reason, the commencement of a defamation claim does not trump freedom of expression or the right to privacy.

[Warman, at para. 33]

After surveying previous decisions, Justice Wilton-Siegel set out four considerations, aimed at preventing abuse of the Rules and respecting the privacy of internet users, that should have been considered by the motions judge in deciding whether to order disclosure under the Rules: 

• whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances; 
• whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith; 
• whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and 
• whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.

[Warman, at para. 34]

In concluding that plaintiffs should be required to meet a prima facie standard rather than a lower bona fide standard, the Court emphasized the importance of protecting freedom of expression and noted that there was no concern that the higher standard would deprive applicants of a remedy:

In para. 34 of BMG [2005 FCA 193], the Federal Court of Appeal expressed the concern that, in that case, imposition of a prima faciecase standard would effectively strip an applicant of a remedy because the plaintiff could not know the actual case it wished to assert against the defendants until it knew not only their identities but also the nature of their involvement in the [internet] file-sharing activities. Because the present proceeding is a defamation action, that concern does not arise. Unlike BMG, the respondent knows the details of precisely what was done by each of the unknown alleged wrongdoers. 

In addition, because this proceeding engages a freedom of expression interest, as well as a privacy interest, a more robust standard is required to address the chilling effect on freedom of expression that will result from disclosure. It is also consistent with the recent pronouncements of the Supreme Court that establish the relative weight that must be accorded the interest in freedom of expression. In the circumstances of a website promoting political discussion, the possibility of a defence of fair comment reinforces the need to establish the element of defamation on a prima facie basis in order to have due consideration to the interest in freedom of expression. On the other hand, there is no compelling public interest in allowing someone to libel and destroy the reputation of another, while hiding behind a cloak of anonymity. The requirement to demonstrate a prima facie case of defamation furthers the objective of establishing an appropriate balance between the public interest in favour of disclosure and legitimate interests of privacy and freedom of expression.

[Warman, at paras. 41 - 42]

3. Implications

Warman represents an important recognition that while internet users’ anonymity ought not to be protected absolutely, the mere commencement of a defamation action should not give rise to an automatic entitlement to information identifying a previously anonymous poster without a consideration of the interests of privacy and freedom of expression.

Nevertheless, there is still uncertainty with respect to the degree of protection that courts will afford to anonymous posters in the future. Under Canadian law, plaintiffs have two ways to seek disclosure in internet defamation cases. Apart from identifying anonymous defendants by seeking pre-action discovery or production of relevant information under procedural rules, as occurred in Warman, plaintiffs may also bring independent actions for disclosure of the identity of anonymous defendants by way of an equitable bill of discovery known as a “Norwich order”. Norwich orders were introduced in the decision of the House of Lords in Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.) in which it was held that where a third party becomes involved in the tortious acts of others, that third party has a duty to disclose the identity of the tortfeasor so that the plaintiff may pursue its remedies. The Norwich factors were recently confirmed by the Ontario Court of Appeal in GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619 and applied in the internet defamation context by the Ontario Superior Court of Justice in York University v. Bell Canada Enterprises (2009), 311 D.L.R. (4th) 755 (Ont. S.C.J.) (“York University”): 

• whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim; 
• whether the applicant has established a relationship with the third-party from whom the information is sought, such that it establishes that the third party is involved in the acts; 
• whether the third party is the only practicable source of the information; 
• whether the third party can be indemnified for costs to which it may be exposed because of the disclosure; and 
• whether the interests of justice favour obtaining the disclosure. 

[York University, at para. 13]

Although the second and fourth Norwich factors were not relevant in Warman because they apply only to third party respondents rather than co-defendants [see Warman, at para. 39], some of the other Norwich factors are similar to the considerations set out in Warman that are now applicable to the question of whether a court should order disclosure under the Rules. However, an important difference remains. While the approach under Warman requires plaintiffs to demonstrate a prima facie case of defamation, Norwich jurisprudence has required plaintiffs to meet the lower bona fide standard. For example, even though the plaintiff in York University managed to establish a prima facie case of defamation, the court did not require the plaintiff to demonstrate more than a bona fide case. Although Warman provides compelling reasons to prefer the higher prima facie standard where the plaintiff seeks disclosure through a Norwich order, it remains open for courts to require plaintiffs to meet the lower standard instead.

Originally posted on Defamation Law Blog

So what happens when a notoriously anonymous and irresponsible blogger is identified?  We may just find out with the recent revelation that the author behind Blazing Cat Fur is allegedly an individual named Arnie Lemaire.

The site is a case study of exactly what not to do with online political commentary, with plenty of potentially libelous statements and speculative conclusions. In fact the site seems to specifically seek to target individuals and comment on them personally.

The Limitations Act states,

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[emphasis added]

Anonymity in this context is frequently used to shield the blogger from potential litigation by avoiding identification of authorship.  Although there are mechanisms to identify authorship, they can be tricky and are still developing.

With the revelation of authorship behind these statements, a new limitations period may have started for statements made on the site if relying on 5.(1)(b).  They may still have to rebut the presumption in 5(2),

Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[emphasis added]

Depending on the cause of action, the appropriate limitation might be found under the Libel and Slander Act,

Limitation of action

6. An action for a libel in a newspaper or in a broadcast shall be commenced within three months after the libel has come to the knowledge of the person defamed, but, where such an action is brought within that period, the action may include a claim for any other libel against the plaintiff by the defendant in the same newspaper or the same broadcasting station within a period of one year before the commencement of the action.
[emphasis added]

Alternatively, a plaintiff could try to rely on the special circumstances indicated in Mazzuca v. Silvercreek Pharmacy Ltd.,

[32]         Thus, as a general rule, amendments to pleadings which had the effect of relieving against a limitation period, were not allowed.  This did not mean, however, that in every case such amendments were to be denied.

[33]         The exception to the general rule, which contemplated the allowing of an amendment in a proper case notwithstanding the intervention of a limitation period, was expressly recognized by the Supreme Court of Canada in Basarsky v. Quinlan, supra, in which Hall J. observed at 385:

“The adjective ‘peculiar’ in the context of Lord Esher, M.R.’s judgment and at the date thereof may be equated with ‘special’ in current usage”.

This decision, and the undertaking of a special circumstances analysis, have been followed in numerous subsequent cases.  In some instances this has occurred in the context of the operation of particular limitation periods where special considerations may apply, or legislative regimes which expressly provide for the extension of time periods established by statute.  In other cases, the analysis of special circumstances has been undertaken when a change of parties is sought, as a discretionary matter, under the rules.

So will this unveiling lead to any litigation?  We’ll have to see, but it will be interesting to find out.

Arnie Lemaire of Blazing Cat Fur with his camera. He likes to take photos of random people and place them on his site, so here is the favour returned.

]]> http://lawiscool.com/2010/04/26/arnie-lemaire-is-behind-blazing-cat-fur/feed/ 11 http://lawiscool.com/2010/03/29/discussing-quan-v-cusson-and-grant-v-torstar/?nucrss=1 http://lawiscool.com/2010/03/29/discussing-quan-v-cusson-and-grant-v-torstar/#comments Mon, 29 Mar 2010 15:41:10 +0000 Omar Ha-Redeye http://lawiscool.com/?p=2567 ]]> The Ontario Bar Association (OBA) Young Lawyers Division has an interesting article by Karen Perron of Merovitz Potechin LLP discussing an event they held with Wendy Wagner of Gowling Lafleur Henderson LLP and Ron Caza of Heenan Blaikie LLP on the two recent SCC decisions in Quan v. Cusson and Grant v. Torstar,

After reviewing the decisions themselves, our speakers discussed the impact of the decisions on the daily practice of law in this area. Because a key component of the defence is proving that the journalist/writer was diligent in trying to verify their story, will this now invite a more formal exchange between the media and the subjects of the reports who are, arguably, the potential victims of defamation? Lawyers acting on the plaintiff side are now getting calls from their clients immediately after they are contacted by journalists. What is the best advice to provide to your client in this circumstance? How can you provide an opinion to your client on the merits of his or her case without first proceeding to discoveries to uncover the extent of the journalist’s due diligence? Of course, the counterargument is that responsible journalists should always take the necessary steps to verify their stories prior to reporting them in any case, including speaking to the subject of the report. Will this defence actually bring anything new to the manner in which good journalists function? However, will the responsible journalism defence now impact the public’s interest to receive news stories in a timely and effective manner? How long should a journalist wait to receive a plaintiff’s response in a world where news is a quickly perishable item?

Many other considerations also come into play. How will the defence evolve in light of the fact that the jury has been given the role of determining whether the publisher was diligent in trying to verify the allegations? Also, the defence has not been limited to the media. What effect will this have on bloggers and tweeters? These decisions also introduced the reportage defence, which is an exception to the repetition rule that otherwise holds that repeating a libel has the same legal consequences as originating it. How will the new reportage defence evolve? Will experts be required to testify on whether or not a journalist completed their due diligence? Will a standard of care emerge for journalists?

Good questions.  We’ll have to watch the case law to find out.

WikiLeaks logo (via Wikipedia)

WikiLeaks, the whistle-blowing website that provides confidential and sensitive documents for free to the media, human rights groups and the public, has been deemed a threat by the US Army.

WikiLeaks has been responsible in the past for providing a copy of the Standard Operating Procedures for Camp Delta, the contents of Sarah Palin’s Yahoo account, and a membership list of the far-right British National Party which got at least one police officer dismissed, among many other significant stories.

A 2008 document recently posted there, entitled U.S. Intelligence planned to destroy WikiLeaks, states,

The possibility that current employees or moles within DoD or elsewhere in the U.S. government are providing
sensitive or classified information to Wikileaks.org cannot be ruled out.

Plans included trying to shut down the website using a variety of techniques, including exposing their sources to embarrass and intimidate them, and even litigation.

Considering that this document was considered “secret,” and presumably came from someone who had access to confidential files, the concerns may be valid.  But the appropriateness of the response by the military towards a media channel providing a significant and overwhelmingly positive contribution to issues of public interest is also suspect.

The editors of WikiLeaks note that 2 years have passed without any exposure of their sources, indicating that this response may also be particularly ineffectual.  They also point to inaccuracies regarding the editorial control of the site.

Even if the Army was able to shut down WikiLeaks, they concede that the problem is not limited to a single site,

Web sites similar to Wikileaks.org will continue to proliferate and will continue to represent a potential force protection, counterintelligence, OPSEC, and INFOSEC threat to the US Army for the foreseeable future.

Although security interests are pressing and substantial, when a democratic government administration is known to participate in systematic abuses of human rights and widespread violations of international norms, the balance of favour should continue to support sites like WikiLeaks.